Removal of Members of the Commission on Federal Laws for the Northern Mariana Islands ( 1983 )

Removal of Members of the Commission on
Federal Laws for the Northern Mariana Islands
The basic presum ption underlying the general law on the President’s removal authority is that the
power to appoint implies the power to remove. Although Congress may alter this presumption
by an express indication to limit the President’s removal authority, consistent with constitu­
tional requirements, it has not done so in establishing the Commission on Federal Laws for the
Northern M ariana Islands.
M embers o f the Commission are appointed by the President. The covenant establishing the
Com mission and its legislative history indicate no intention to restrict Presidential removal
power. Accordingly, in the absence of any congressional intent to the contrary, the President
has the authority to remove Commission members in his discretion, even though the Com m is­
sion perform s no executive functions and provides services exclusively to the Legislative
Branch.
April 14, 1983
M em orandum O p in io n for th e C o un sel to the P r e s id e n t
This memorandum responds to your request for our opinion whether the
President may remove members of the Commission on Federal Laws for the
Northern Mariana Islands (Commission). You have transmitted to us two
memoranda prepared by different officials of the Department of Interior reach­
ing conflicting conclusions on this question, and have asked us to resolve the
matter. The first memorandum, which was prepared by the Assistant Solicitor
to the Associate Solicitor, Division of General Law, Department of the Interior,
concludes that the Commission is an adjunct of Congress and, as such, part of
the Legislative Branch. This conclusion rests on a determination that the sole
function of the Commission is to make recommendations to Congress about the
applicability of laws of the United States to the Northern Mariana Islands,
which recommendations Congress may or may not enact in legislation. This
memorandum reasons that because the Commission is part of the Legislative
Branch, Congress must have intended that the President would not have the
authority to remove Commission members in his discretion. The second memo­
randum, which was prepared by the Associate Solicitor of the Interior Depart­
ment, concludes that because the President has the authority to appoint Com ­
mission members, the presumption must be that Congress intended that the
President also has the power to remove members at will. This presumption is
not found to be overcome by any express indication o f congressional intent to
limit Presidential removal authority. Without specifically discussing the ratio­
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nale o f the first memorandum, the second memorandum tacitly accepts the
possibility that the President may have plenary removal authority over advisers
to the Legislative Branch, at least absent any clear indication to the contrary by
Congress.
In our view, the second of these memoranda more faithfully reflects in its
reasoning and conclusion the key principles concerning Presidential removal
power. We believe that the President may, in his discretion, remove Commis­
sion members, even assuming arguendo that the Commission is an entity
which performs no Executive functions whatsoever and provides services
exclusively to the Legislative Branch. An important, but not necessarily
dispositive principle in interpreting statutes regarding matters of removal from
office, is that the power to appoint implies the power to remove absent some
affirmative indication of congressional intent to the contrary. We have found
no such indication in this instance. Indeed, Congress vested the appointment
power over members o f this entity in the President without in any way suggest­
ing that the appointing authority did not retain the power of removal.
In Part I, we will discuss the background o f this issue; in Part II, we will
analyze the pertinent legal issues.
L B ackground
The Commission was established pursuant to a joint resolution adopted in
1976, which approved the “Covenant to Establish a Commonwealth of the
Northern M ariana Islands in Political Union with the United States of America”
(Covenant). Pub. L. No. 94-241, 90 Stat. 263 (1976). The joint resolution
approving the Covenant in general marked a new stage in the ongoing relation­
ship between the United States and the Northern Mariana Islands (Northern
Marianas). The Northern Marianas are part o f the Pacific Trust Territories.1
The trusteeship arrangement with the Northern Marianas established after
World W ar II eventually will terminate, and the islands will become a Com­
monwealth in Political Union with the United States.
The function and composition of the Commission are set forth in § 504 of the
Covenant, as follows:
The P resident will appoint a Commission on Federal Laws to
survey the law s of the U nited States an d to make recommenda­
tions to the United S tates Congress as to which laws o f the
U nited States not applicable to the Northern Mariana Islands
should be m ade applicable and to what extent and in what
manner, an d which applicable law s should be made inappli­
cable an d to what extent and in what manner. The Commission
will consist o f seven persons (at least four o f whom will be
1 In addition to the N orthern Mariana Islands, the Pacific T rust T erritories include Palau. Truk, the M arshall
Islands, Ponape and Yap. See S. Rep. N o. 596, 94th Cong., 2d Sess. 13 (1976). The m ajor islands o f the
N orthern M an an as are Saipan, Tinian and R ota.
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citizens of the Trust Territory of the Pacific Islands who are and
have been for at least five years domiciled continuously in the
Northern Mariana Islands at the time of their appointments) who
will be representative of the federal, local, private and public
interests in the applicability of laws of the United States to the
Northern Mariana Islands. The Commission will make its final
report and recommendations to the Congress within one year
after the termination o f the Trusteeship Agreement, and before
that time will make such interim reports and recommendations
to the Congress as it considers appropriate to facilitate the
transition of the Northern Mariana Islands to its new political
status. In formulating its recommendations the Commission will
take into consideration the potential effect of each law on local
conditions within the Northern Mariana Islands, the policies
embodied in the laws and the provisions and purposes o f the
covenant. The United States will bear the cost of the work o f the
Commission.
Pub. L. No. 94-241, § 504, 90 Stat. 268 (1976) (emphasis added).2 Thus, the
President appoints the Commission members, and the Commission makes
recommendations to Congress about the applicability of United States laws to
the Marianas. The Commission’s final report will be made not later than one
year after the termination of the trusteeship arrangement with the Marianas.
The Commission members are not appointed to determinate, fixed terms of
service.3
II. Discussion
Before analyzing this particular case, we first consider the broader legal
principles that have been held by the courts to be applicable to questions
regarding the power of the President to remove his appointees. As we will
discuss below, the fundamental principle applicable in removal cases is that the
power to appoint implies the power to remove. Congress has, however, fre­
quently sought to limit the President’s power to remove and replace those
whom he (or his predecessor) has appointed to particular positions. Accord­
ingly, it is necessary to turn preliminarily to the intent of Congress and
2 The C om m ission is the latest in a line o f sim ilar C om m issions w hose purpose has been to advise Congress
on the applicability o f United States laws in different areas. See 30 Stat. 750, 751 (1899) (H aw aii); 45 Stat.
1253 (1929) (A m erican Samoa); 64 Stat. 3 9 0 (1 9 5 0 ) (Guam ); 68 Stat. 501 (1954) (V irgin Islands). The status
of the m embers o f the 1899 H aw aiian C om m ission are the subject o f a H ouse Judiciary C om m ittee report. See
H.R. Rep. No. 2205, 55th Cong., 3d Sess. (1899). The question addressed in that report — w hether m embers
of the H awaiian and sim ilar com m issions w ere “officers” o f the U nited States, and thus w hether the
constitutional bar on service as civil officers by M embers o f C ongress (some o f whom served on such
advisory com m issions) applied — is not germ ane to this opinion. In o ur view, the issue o f the President’s
removal pow er m ay be settled without deciding w hether the C om m ission m em bers are “officers’' o f the
U nited States.
3 It is o f course possible that the trusteeship agreem ent w ill not actually term inate for som e years.
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determine whether Congress has sought to restrict the appointing authority’s
removal power. If there is persuasive evidence of such a congressional intent, it
is necessary to determine whether there is any constitutional limit on Congress’
effort to restrict removal power in a given case.
Thus, our analysis will commence with the basic principles regarding re­
moval, and then will focus on the question whether Congress endeavored to
limit the President’s removal power in this instance. Because, as we conclude,
there is no sufficient basis on which to infer such an intent, we do not reach the
further question whether it would be constitutional for Congress to limit the
President’s removal power in this context.4
A basic presumption, albeit rebuttable, underlying the general law on the
President’s removal authority is that the power to appoint implies the power to
remove. This principle has been recognized by Congress and the Supreme
Court since the earliest days o f the Republic, and has been ratified repeatedly in
m odem case law. See 1 Annals of Cong. 469 (1789) (statement of James
Madison on the floor o f the House of Representatives during the Great Debates
o f 1789); M atter ofH ennen, 38 U.S. (13 Pet.) 230, 259-60 (1839); Blake v.
U nited States, 103 U.S. 227, 231 (1880); Keim v. United States, 177 U.S. 290,
293-94 (1900); S h u rtlejf\. U nited States, 189 U.S. 311,314-15 (1903); M yers
v. U nited States, 272 U.S. 52, 119 (1926); Cafeteria Workers v. McElroy, 367
U.S. 886, 896-97 (1961); Sampson v. M urray, 415 U.S. 61, 70 n.17 (1974);
N ational Treasury Employees Union v. Reagan, 663 F.2d 239, 246—48 (D.C.
Cir. 1981); K alaris v. Donovan, 697 F.2d 376, 389 (D.C. Cir. 1983); Martin v.
Reagan, 525 F. Supp. 110, 112 (D. Mass. 1981).
This principle applies to the appointments by the President and by other
Executive officers, such as department heads, who are appointing officials. A
fundamental rationale for this principle appears to be the notion that appointing
authorities necessarily have some degree o f supervisory responsibility with
respect to those whom they appoint. In particular, the appointing authority
retains a certain duty to assure that the appointed official carries out his duties
in a satisfactory manner. This idea is reflected in the Supreme Court’s state­
ment in S h u rtleff\. United States, 189 U.S. at 316, that the principle recognizes
an “inherent” implication of the appointing power:
The right o f removal w ould exist if the statute had not contained
a w ord upon the subject. l5l It does not exist by virtue of the
grant, but it inheres in the right to appoint, unless limited by
Constitution or statute.
(Emphasis added.) In another passage in Shurtleff, 189 U.S. at 314-15, the
Court explicitly drew the connection between this principle and the notion that
4 B ecause the C om m ission merely a d v ises Congress and does not exercise purely Executive powers, we
acknow ledge that the co u rts are most lik e ly to uphold restrictions on Presidential rem oval pow er with respect
to this type o f entity, if such restrictions are intended by C ongress. C f W iener v. U nited States, 357 U.S. 349(1958); H u m p h rey's E xecu to r v. U nited States, 295 U.S. 602 (1935).
9 T his is the case here. The statute c reating this Com m ission contains not a word on the subject o f removal.
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an appointing official necessarily has a degree of supervisory responsibility
with respect to those whom he appoints. The Court wrote with respect to the
President’s power to remove an official appointed with advice and consent:
It cannot now be doubted that in the absence of constitutional
or statutory provision the President can by virtue of his general
power of appointment remove an officer, even though appointed
by and with the advice and consent of the S en ate.. . . Congress
has regarded the office as of sufficient importance to make it
proper to fill it by an appointment to be made by the President
and confirmed by the Senate. It has thereby classed it as appro­
priately coming under the direct supervision of the President
and to be administered by officers appointed by him, (and
confirmed by the Senate,) with reference to his constitutional
responsibility to see that the laws are faithfully executed. Article
II, sec. 3.
Id. This emphasis on the appointing authority’s supervisory responsibility for
officials whom he appoints also appears in M yers v. United States, 272 U.S. at
119, where the Court wrote:
The reason for the. principle is that those in charge of and
responsible for administering functions of government who se­
lect their executive subordinates need in meeting their responsi­
bility to have the power to remove those whom they appoint.
In addition, the basic principle that the power to appoint implies the power to
remove reflects a practical awareness of the need for a rule for use in cases in
which the governing statute is silent on removal. Absent such a rule, it would
be unclear who has the power of removal. By providing that, as a general
matter, the appointed official serves at the discretion of the appointing author­
ity, the principle also helps prevent the possibility of an official serving
indefinitely in his position, a status disfavored under normal understandings of
tenure of office in the United States. As the Court wrote in M atter o f Hennen,
38 U.S. at 259:
All offices, the tenure of which is not fixed by the Constitution or
limited by law, must be held either during good behavior, or (which
is the same thing in contemplation of law) during the life of the
incumbent; or must be held at the will and discretion of some
department of the government, and subject to removal at pleasure.
It cannot, for a moment, be admitted, that it was the intention
of the Constitution, that those offices which are denominated
inferior offices should be held during life. And if removable at
pleasure, by whom is such removal to be made? In the absence
of all constitutional provision, or statutory regulation, it would
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seem to be a sound and necessary rule, to consider the power of
removal as incident to the power of appointment.
This general principle accordingly provides the starting point for discussion:
absent contrary indication in the governing legislation, the President’s power to
appoint members o f the Commission implies the President’s power to remove
such members. This approach has the additional virtue of being consistent with
the position that the Executive Branch has taken in case after case and legal
opinion after legal opinion throughout this nation’s history. O f course, it allows
Congress to alter the starting point by expressing a contrary intent consistent
with constitutional requirements. Our task is to determine whether any relevant
indications o f legislative purpose preclude or overcome the application of the
general principle in this case. We find no reliable evidence of such an intent,
and we therefore conclude that the President’s authority to remove Presidential
appointees from the Commission was not restricted by the Legislature.
First o f all, the Covenant establishing the Commission and the legislative
history o f the Covenant contain no language indicating a specific intention to
restrict Presidential removal power. The joint resolution itself is silent on the
question. The legislative history, when it discusses the Commission at all,
tends simply to repeat the basic provisions of § 504 of the Covenant, quoted
above.6 For example, the legislative history underscores that Congress in­
tended the President to appoint Commission members, and it reveals no effort
to require either any congressional participation in the appointing process or
any limitation on the exercise of removal authority.
Furthermore, the typical indicia o f congressional intention to restrict Presi­
dential removal power that have been relied upon by the courts in the leading
decisions on this subject in finding such an intention are generally not present
here. For example, there is no express or implicit provision limiting removal of
Commission members for stated “causes.” Cf. Hum phrey’s Executor v. United
States, 295 U.S. 602, 619 (1935). Also, there is no provision in the Covenant
providing that the Commission’s decisions are to be transmitted directly to
Congress without any review or comment by concerned Executive officials. Cf.
W iener v. U nited States, 357 U.S. 349, 352-53 (1958). Nor is there language in
the legislative history of w hich we are aware calling generally for the
Com m ission’s “independence” from Executive oversight. Cf. Humphrey’s
Executor, 295 U.S. at 624-25. Finally, the Covenant does not provide for
specific, fixed-year terms o f service for Commission members. Cf. id. at
622-23.
This last point is worthy of particular note. Although the mere presence of a
statutory provision for a specific term of service has not been deemed a
sufficient basis on which to infer a legislative purpose of restricting Presiden­
tial removal authority,7 the absence of any fixed-year term of service buttresses
6S ee S. Rep. No. 5 9 6 .94th Cong., 2d S ess. 5 (1976); H.R. Rep. No. 3 6 4 ,94th Cong , 1st Sess. 9 (1975); 122
C ong. R ec. 4 1 8 7 -2 3 2 (1976); 121 Cong. R ec. 23662-73 (1975).
7 R ather, it has been interpreted as providing a lim it on the period for w hich an appointee can serve without
reappointm ent. See Parsons v. United S tates, 167 U .S. 324, 338 (1897).
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the argument that the President has removal authority in this case. Commission
members are to serve not longer than one year after the termination of the
trusteeship agreement with the Northern Mariana Islands.8 Although this pro­
vision establishes some outer limit of service, it does not establish any definite,
fixed term of service. To the contrary, given that the trusteeship agreement
conceivably could last for a substantial length of time, the linkage between its
continuance and the Commission’s existence establishes that Commission
members would, if not removable by someone, serve for an indefinite period.
Because, as a general matter, good behavior is presumed, an official who can
be removed during an indefinite term of service only by way of impeachment,
or for “cause” as a result of “bad behavior,” is considered to have the possibil­
ity of life tenure. Cf. S h u rtle jf\. United States , 189 U.S. at 316; M atter o f
Hennen, 38 U.S. at 260; K alaris v. Donovan, 697 F.2d 376, 398 (D.C. Cir.
1983); see also D eCastro v. B oard o f Com m ’rs o f San Juan, 322 U.S. 451,462
(1944); Reagan v. United States, 182 U.S. 419, 426-27 (1901). Accordingly,
the presumption against the possibility of life tenure supports the view that the
President has removal authority in this case.
Another factor which must be noted is that Congress has provided for the
Commission’s funding through a line item in the Department of the Interior’s
appropriation for territorial affairs. See Pub. L. No. 96-126, 93 Stat. 954, 969
(1979). The source of funding by itself is not necessarily a determinative
indication of an entity’s status as in the Executive or Legislative Branch. See
Eltra Corp. v. Ringer, 579 F.2d 294, 301 (4th Cir. 1978). Nevertheless, the fact
that Congress has provided for the Commission to receive its funds from the
Interior Department’s appropriation is a further indication, albeit relatively
slight, that Congress did not intend to establish the kind of independence from
the Executive Branch that normally accompanies restrictions on Presidential
removal authority.
It might be argued that H um phrey’s Executor, 295 U.S. at 624—25, provides
support for a contrary argument. In H umphrey’s Executor, the Court held that
the President did not have unlimited removal authority with respect to mem­
bers o f the Federal Trade Commission. Although much of the Court’s opinion
dealt with the constitutional questions raised by the case, the Court did discuss
the statute involved. One of the factors relied upon in its statutory construction
was the fact that the FTC performed “quasi- legislative” functions, namely,
rulemaking, which the Court concluded were intended by Congress to be
performed by an entity independent of the President’s plenary removal author­
ity. In the present case, it might be suggested that the Northern Mariana Islands
Commission’s sole function is to advise Congress in aid of its legislative
power, and thus it should be viewed as an arm of Congress. From this premise,
it might be argued that one should infer that Congress did not intend to allow
8 Section 504 o f the Covenant establishing the Commission provides that the Com m ission will make its
final report w ithin one year o f the term ination o f the trusteeship agreem ent. Hence, the C om m ission is to go
out o f existence after that time.
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the President to remove Commission members, i.e., members of a Congres­
sional entity, in his unfettered discretion.
Although the foregoing argument is by no means frivolous, we do not
believe that H um phrey’s Executor provides support for the interpretation that
the President lacks removal power over members of this Commission. The
Court in H um phrey’s Executor noted that several indicia of congressional
intent, taken together, existed to support the conclusion that Congress intended
to limit the President’s removal authority. See 295 U.S. at 624-26. Not the least
of these factors was an explicit statutory provision limiting the grounds for
removal. In addition, the FTC Commissioners served for a specified term of
years, and according to the Court, the legislative history made clear that
Congress expected them to act independently of Executive Branch influence.
Furthermore, unlike the FTC, the Commission here does not exercise quasi­
legislative powers. It performs merely an advisory function. A body such as
this might provide advice to any branch of government. Its function, therefore,
does not by itself suggest the need for its separateness from the Executive
Branch. See id.; see also M artin v. Reagan, 525 F. Supp. 110, 112-13 (D.
Mass. 1981). Thus, the situation in H um phrey’s Executor is fundamentally
distinguishable from the situation in this case.9
Even if we grant that the Commission is an arm of Congress, and thus
entirely part of the Legislative Branch (a conclusion which we do not reach and
do not intend by anything articulated herein to prejudge), it does not follow that
the President cannot remove the Commissioners in his discretion.10 If the
Commission is entirely part of the Legislative Branch, Congress did not have to
vest appointment power in the President. But it did so nonetheless. This grant
of the appointment power has tw o key implications.
First, because the appointment power by itself is by no means an insignifi­
cant power with respect to appointed officials, Congress clearly acceded at
least to a significant degree of Presidential supervision of Commission mem­
bers. See Shurtleff v. United States, 189 U.S. 311, 315 (1903).11 Second,
9 W e also believe that th is case is c learly distinguishable from W iener v. United States, 357 U.S. 349(1958). T h at case involved an adjudicatory body, the W ar C laim s Com m ission, w hose statute provided that
its decisio n s w ere to be free from review b y any other official o f the U nited States. See id. at 354-55 In
contrast, no adjudicatory functions such a s those in Wiener are perform ed by the C om m ission and no
concom itant need exists for “independence” from the Executive. In addition, there is no sim ilar statutory
provision in th is case indicating an intent to shield the C om m ission's decisions from review by other
officials. Cf. B orders v. Reagan, 518 F. Supp. 250 (D D.C. 1981); Lew is v. Carter, 436 F. Supp. 958 (D.D.C.
1977).
W e add that the argum ent based on the functions o f the Com m ission is more central with respect to the
constitu tio n al question w hether Congress c an lim it Presidential rem oval power. C f H um phrey's Executor,
295 U.S. a t 6 3 1 -3 2 . As noted at the outset, w e do not need to reach this issue, given that we are able to resolve
the question on the basis o f an analysis o f th e statute and the principle that the pow er to appoint im plies the
pow er to rem ove.
10 W e note th at, in a d ifferen t context, th e C om ptroller G eneral has concluded that the C om m ission is a
L egislative Branch entity. See Comp. Gen. O p. No. B -202206 (June 16, 1981).
11 As the C ourt noted in Keim v. United States, 177 U.S. 290, 293 (1900): “The appointm ent to an official
position in the G overnm ent, even if it be sim ply a clerical position, is not a m ere ministerial act, but one
involving the exercise o f judgm ent. The appointing pow er m ust determ ine the fitness o f the applicant;
w hether o r not he is the proper one to discharge the duties o f the position.”
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because the law is that the power to appoint implies as a basic underlying
proposition the power to remove, and because we must assume that Congress
was aware of the law, Congress may reasonably be said to have taken for
granted in this case that the President would have the power to remove Com­
mission members appointed by him or a previous President. If Congress had
rejected these implications, it easily could have provided for some other
method of appointment or specifically limited the President’s power to remove
the Commissioners.
Conclusion
To summarize, we believe that the Congress is undoubtedly aware that the
power to appoint has been held throughout this nation’s history to imply the
power to remove, and that Congress has within its control the ability to
overcome this presumption, at least as a statutory matter. In construing the
relevant statutory materials in this case, we have found no intent to restrict the
President’s removal power and some slight indication that potential removal by
the President actually was intended (no term specified, the failure to designate
someone else to exercise removal authority, and other factors discussed herein).
We conclude that the President has the authority to remove Commission
members in his discretion.
T h eo do re B . O lson
Assistant Attorney General
Office o f Legal Counsel
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